The D.C. Department of Corrections has agreed to improve its housing policies for transgender inmates at the D.C. Jail as part of a recent settlement with a former inmate who was forced to live in a unit that did not match her gender identity.
The former inmate in question, Sunday Hinton, a transgender woman, was arrested in the spring of 2021 on a charge of unarmed burglary for allegedly trying to steal $20 and held in the D.C. Jail for four weeks prior to her trial. The charge against her has since been dismissed.
While Hinton was in custody of the D.C. Department of Corrections, she was placed in a men’s unit, due to DOC’s policy primarily placing transgender individuals in cells designated for their assigned sex at birth, based on their genitalia.
The settlement, reached Thursday between the Department of Corrections and Hinton’s lawyers, from the the ACLU of the District of Columbia and the Public Defender Service for the District of Columbia, requires the Department of Corrections to improve its housing policies for transgender inmates at the D.C. Jail.
Specifically, the department will assign inmates to be housed in accordance with their gender identity and limit the time they are held in isolating “protective custody,” also known as solitary confinement, prior to receiving their housing assignment.
Additionally, the department will end its practice of placing all inmates in protective custody, including trans inmates, in full-body shackles while being transferred or moved within the jail, and will require the department to report statistics to the Public Defender Service for four months to ensure it is abiding by the terms of the settlement agreement.
“Sunday Hinton’s courageous fight against discrimination has led to important changes not only for transgender individuals but for all protective custody jail residents, who until now were subjected to the degrading and unjustified practice of full-body shackling,” Rachel Cicurel, a staff attorney with the Public Defender Service for the District of Columbia, said in a statement. “Ms. Hinton’s case has exposed several kinds of inhumane treatment by DOC.”
Under the old DOC policy, incarcerated transgender individuals wishing to be housed in a unit matching their gender identity would have to obtain a recommendation from DOC’s Transgender Housing Committee, a panel comprised of corrections staffers, a doctor, a social worker, a mental health clinician, and members of the local transgender community, who would take into account factors like whether a trans individual had undergone “full reassignment surgery” or had ever been in a “heterosexual relationship,” among other factors. And even if the committee agreed to place a transgender inmate in gender-affirming housing, the final decision was left up to the warden of D.C. jail, rather than the best interests of the prisoner.
Further complicating things was the fact that the Transgender Housing Committee had failed to meet, either in person or virtually, since January 2020, with most citing the COVID-19 pandemic as an excuse for why the committee had failed to hold hearings on requests from lawyers representing transgender inmates, like Hinton.
According to data from the 2015 U.S. Transgender Survey, transgender individuals are over five times more likely than cisgender individuals to be sexually assaulted while incarcerated. Exacerbating this disturbing trend is the fact that transgender inmates who are housed according to their assigned sex at birth are at heightened risk of sexual abuse.
In May 2021, Hinton filed a class-action lawsuit charging the Department of Corrections with discrimination based on Hinton’s gender identity and her sex, in violation of her constitutional right to equal protection under the U.S. Constitution and the D.C. Human Rights Act. She alleged that DOC had imposed unconstitutionally dangerous conditions of confinement, in violation of her due process rights, and argued that DOC’s approach to housing transgender individuals violated protections guaranteed to inmates under the Prison Rape Elimination Act.
After Hinton filed her lawsuit, she was subsequently moved to a women’s unit. A month later, the D.C. Department of Corrections scuttled its anatomy-based policy, allowing transgender inmates to obtain hearing requesting gender-affirming housing, but requiring them to enter solitary confinement before receiving a more permanent housing assignment.
Despite the policy changes, Hinton and her lawyers decided to continue challenging the policy, claiming that forcing trans prisoners into solitary confinement is still discriminatory, and puts them at greater risk of mental health problems. They also objected to the use of full-body shackles for those kept in solitary confinement, which they characterized as “dehumanizing.”
In October, Judge John Bates, of the U.S. District Court for the District of Columbia, denied a motion from Hinton’s lawyers seeking an injunction to stop the Department of Corrections from enforcing its “new” policy, ruling that because Hinton was no longer in custody at the time, and because the department had changed its original policy, there was no need for “immediate relief” that an injunction would bring.
However, Bates never ruled on the merits of DOC’s policies, and allowed Hinton’s lawsuit to move forward. The Department of Corrections then began engaging in talks with Hinton’s lawyers, seeking to reach a settlement agreement.
“No one should face what I had to face at the D.C. Jail. DOC put my safety and mental health at risk, and I’m glad that other trans people at the Jail will be treated with more dignity,” Sunday Hinton said in a statement.
“We’re very pleased to be settling this because the D.C. Department of Corrections will be changing its policy to require more humane treatment of transgender people in custody,” Scott Michelman, the legal director of the ACLU of the District of Columbia, told Metro Weekly in an interview praising the settlement.
“With this new settlement, the Department of Corrections is agreeing to drop shackling entirely for protective custody and also to to ensure that that trans people are not in protective custody longer than a 24-hour period to assess their safety,” Michelman added. “After that, they’ll be moved to the unit corresponding with their gender identity.”
Although Michelman noted that the settlement didn’t eliminate all of the ACLU’s concerns about protective custody, he said that stopping the shackling of those in protective custody and setting a 24-hour time limit — excluding weekends and holidays — on the time that a person spends in protective custody, are positive developments.
He also noted that those placed in solitary confinement will be placed in protective custody units that match their gender identity, and that transgender inmates would eventually be seen by a Prison Rape Elimination Act coordinator, who will determine whether they need to remain in protective custody because of a risk to their safety, or whether they can be assigned to a cell that corresponds with their gender identity.
“Another component of the settlement is that [the Department of Corrections] will be required to report certain data about trans people in custody to the Public Defender Service,” he added. “For four months, they will have to report to PDS regarding each trans, intersex or gender non-conforming person in DOC custody, the date of arrival, the inmate’s preference for male or female unit, where the person was housed and other information to enable PDS to ensure that DOC is complying with their obligations under the settlement and their new policy.”
If the department fails to abide by the terms set forth in the settlement agreement, the ACLU and Public Defender Service could sue for breach of contract, or, if they become aware of another trans inmate whose rights are violated, could file an entirely new lawsuit on that person’s behalf.
“I would like to think that the department is coming around and has learned its lesson, as a result of this litigation, that its prior policies were harmful, as well as unconstitutional. I hope this signals a new commitment to and recognition of the humanity and identity of trans individuals,” Michelman said.
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